Pending Cases Research Articles

The Legal System in India: Contemporary Problems

Constitution of India reflects the quest and aspiration of the mankind for justice when its preamble speaks of justice in its all forms: social, economic and political. Those who have suffered politically, socially or economically, approach the Courts, with great hope, for redressal of their grievances. It is imperative on part of the judicial system to administer justice in manner and form that the confidence of countrymen be secured. And they refrain from taking law into their own hands, as they believe; they would get justice from the Courts. Justice Delivery System, therefore, is under an obligation to deliver prompt and inexpensive justice to its pursuers, without in any manner compromising on the quality of justice or in elements of fairness, equality and impartiality. One of the distinguished unitary features of Indian system of governance is its Single stratified Judiciary headed by Supreme Courts followed by High Courts and other Subordinate Courts. India has one of the largest judicial system in the world; there are 16,000 sanctioned Judges, approximately 1,200,000 Advocates – with over 3.2 crores of pending cases. Apparently the institution (i.e. Judicial System in India) seems to be imbedded in Indian culture yet its manner and method of functioning is far from satisfaction. The problem of delay and the accumulation of huge arrears of cases in the lower-courts, the High Courts, and the Supreme Court have assumed serious dimensions and invited a lot of criticism of the entire legal system. Apart from delay, there are many other problems which needs greater attention so that immediate remedy can only ease the burden. With this milieu authors undertakes this brief analytical research centering the legal system of India and problems associating with it.

Should Prosecutors Blog, Post, or Tweet?: The Need for New Restraints in Light of Social Media

Prosecutors’ out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm as well as to strike a balance between trial participants’ right to free speech and defendants’ right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media, for which the rules and standards were written, and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, which has raised concern regarding how social media may magnify both the benefits and the harms associated with prosecutors’ extrajudicial statements. This Note analyzes the differences between traditional media and social media, as well as how those differences impact the effect of prosecutors’ extrajudicial speech on pending matters, the reputation of the accused, and public perception of prosecutors and the justice system as a whole. In particular, this Note focuses on the way in which social media enables prosecutors to editorialize and communicate directly with the public in a manner that traditional media forms, like print newspapers and televised broadcast, could never make possible. This Note concludes by arguing that the increased risk of harm presented by prosecutors’ use of social media to discuss pending cases and other aspects of the prosecutorial function necessitates new restraints to restore the free speech – fair trial balance and promote professionalism in the social media age.

¿Cuál es la naturaleza del órgano que genera pleito pendiente internacional ante la Comisión Interamericana de Derechos Humanos?

<p>El artículo describe lo que la Comisión Interamericana de Derechos Humanos entiende por la expresión “otro organismo internacional gubernamental”, al analizar la admisibilidad de una petición individual en relación con la existencia o no de pleito pendiente internacional. A partir de una investigación básica, descriptiva y deductiva se aborda la pregunta ¿cuál es la calidad del órgano que genera pleito pendiente internacional ante la Comisión Interamericana de Derechos Humanos? El objetivo general es identificar las líneas de argumentación de la Comisión cuando un Estado propone la inadmisibilidad de una petición por la existencia de pleito pendiente internacional. Se concluye que se está en presencia de pleito pendiente internacional cuando se tramita de forma conjunta una petición ante otro órgano de protección de derechos humanos al cual el Estado haya concedido competencia, considerando además que el mandato de dicho órgano debe ser convencional y el procedimiento seguido por él adjudicativo, contencioso y contradictorio.</p>

Sandoz v. Amgen: Why the Biologics Price Competition and Innovation Act of 2009 Allows Biosimilar Makers to Pursue Pre-Application Declaratory Judgment Actions and Will Enhance Competition

The generic drug industry is shifting towards biosimilars. In the coming years, first-generation blockbuster biologic drugs will come off patent protection. However, unlike the small-molecule chemical drug market where exact generic copies can be produced, the complexity of large-molecule biologic drugs makes exact replicates impossible. As a result, biologic copies aim to be as similar as possible to their blockbuster counterparts – thus, the name: biosimilars. The Biologics Price Competition and Innovation Act of 2009 (BPCIA) regulates biosimilar approval.Submarine patents threaten the development of biosimilars. These types of patents are a product of manipulative continuation practices by the applicant, and can result in patent issuance more than a decade after the filing date. Submarine patents are meant to surprise an industry and preclude competition. While some believe submarine patents are a thing of the past, a pending case before the Federal Circuit shows they are not. In Sandoz v. Amgen, the Federal Circuit’s interpretation of the BPCIA will determine what litigation strategies are available to biosimilar makers to combat submarine patents. This is the first case to arise in the biosimilar industry. The issue is one of pure statutory interpretation: does the BPCIA bar a biosimilar maker from filing a declaratory judgment (DJ) action before submitting an application for approval.This article argues that the BPCIA does not preclude pre-application DJ actions. In addition, the article posits that pre-application DJ actions are an important tool in the fight against submarine patents and will enhance competition. The biosimilar industry is fast approaching and the legal community must take notice. This article seeks to further that conversation.

Marriage Equality: The 'States' of the Law Post Windsor and Perry

On June 26, 2013, the United States Supreme Court issued two historic rulings that simultaneously gave gay rights activists their most influential win, while it provided opponents of same-sex marriage with a welcomed delay in finding a constitutional right to same-sex marriage. In this article, amid growing acceptance of same-sex marriage, we will consider whether the Supreme Court will nationalize same-sex marriage in the near term. To do so, we will conduct a comprehensive analysis of each case decided since the twin landmark decisions. After briefly discussing what the Court said (and did not say) in Hollingsworth v. Perry and United States v. Windsor, we will outline the arguments surrounding federalism, liberty, due process, and equal protection, and apply them to the similar but different questions of marriage celebration as opposed to marriage recognition. We will then consider every post-Windsor court decision overturning state marriage bans, drawing similarities and distinctions when available. We will conclude by discussing the three circuit court decisions to address the issue as well as the pending case in Louisiana. Finally, we will present our prediction (for better or worse) of the outcome of these important issues.

The European Court of Justice – Recently Decided and Pending Cases

In this overview, the editors provide a list of judgments of the Court of Justice of the European Union (ECJ) and Opinions of the ECJ’s Advocates General delivered in VAT cases in the past 12 months. The overview also contains a list of the remaining cases pending before the ECJ on 31 August 2014, and a list of cases that have been removed from the ECJ’s register in the past year. Summaries of the judgments, Opinions and other pending cases that have not yet been published are presented following the lists.

Validating Election Law 2013: A Bad Precedent

Elections are a cornerstone of democracy and the Parliament is the pillar of dignity for the democracy. The dignity of democracy can remain safe only if the dignity of Parliament itself remains intact. A person facing a criminal trial may stand for election and even get elected. No law prohibits it. The law disqualifies only convicts from standing for election. A person facing a criminal trial is only required under the law to furnish particulars of criminal cases pending in the court at the time of filing nomination for election so that a voter may have knowledge of the antecedents of the candidates in the fray. 1 However, this requirement has limited impact. In a study on the criminal background of the legislators, an analysis was carried out by Association for Democratic Reforms and National Election Watch which reported that 162 out of 543 Members of Parliament of 15th (present) Lok Sabha (House of the People) have pending criminal cases against them. 2

Legal Aid in Bangladesh: An Overview

Legal aid is a mechanism of providing assistance to people litigants and justice seekers who are otherwise unable to afford legal representation and access to the court system. Our poor litigant people cannot meet the expenses of the high fees of lawyers ,as a result, they silently bear the of agonies and burns of injustice done to them in various spheres of life without any legal relief. This is nothing but a negation to them of one of their fundamental rights of equality before law and the equal protection of law. Legal aid is relatively a new phenomenon in Bangladesh compared to the centuries of old legal system in the country. In this article we have initially discussed the constitutional basis of Legal Aid in Bangladesh followed by an analysis of current legal provisions relating to state sponsored delivery models of legal aid in Bangladesh. We also presented a data sheet representing disposed and pending cases dealt by the District Legal Aid Committee of Chittagong. DOI: 10.5901/jesr.2014.v4n3p279

Why copyright and linking can tango

This article discusses the legal status of links, in connection with the pending cases before the Court of Justice in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed. It focuses on the Opinion of the ‘European Copyright Society’ on the Svensson case. The ALAI Opinion is also briefly discussed. This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European Copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’). The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.

Retroactivity and Crack Sentencing Reform

This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court inordinately relied on the general savings statute enacted in 1871. Congress enacted that statute not to prevent retroactive decriminalization or diminution in punishment, but to avoid the consequence of abatement of pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to avoid the bizarre consequence of offenders walking free merely because Congress recodified a law or even increased the punishment for an offense without specifying that prosecutions could continue under the former enactment. In today’s world, the savings statute should be understood more as a default in the face of congressional silence – once it is clear that Congress considered the temporal scope of its action, the presumption disappears.I next consider whether alternative justifications support a strong presumption for prospective application of any legislative change. I initially turn to the well entrenched norm against retroactive lawmaking. I reject the premise that the conventional reasons against retroactive measures have salience in the context of legislative amelioration of punishment. I then assess two separation of powers concerns that might justify a clear statement rule against retroactive application of congressional leniency. First, I ask whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency.On the other hand, I reject the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders at times seems grossly unfair, and Congress from a deterrence perspective lacks any justifiable reason to treat similarly situated offenders so disparately. Nonetheless, I argue that Congress under a retribution rationale can justify the differential punishment scheme and survive equal protection scrutiny.In short, because there are no compelling policy or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses prior to the decriminalization or diminution in punishment. The Court’s decision in Dorsey should have been straightforward – given the directive in the sentencing act to rectify the disparity in sentencing between crack and powdered cocaine offenses as quickly as possible, Congress intended the shortened sentences to apply to all pending cases.

Patent Law at the Centre of Today’s IP Debate

Patent law seems to be at the very centre of the IP debate today. From time to time news about developments in patent law can even be found in the headlines. Not so long ago we witnessed a fiery debate over the landmark Court of Justice decision relating to the patentability of human stem cells. This debate is far from over as new questions were referred to the Court of Justice for preliminary ruling. Today we are carefully watching what will happen with the unitary patent protection in the EU. We are also awaiting the Court of Justice’s decision in Huawei v. ZTE on FRAND defense in cases relating to standard essential patents. In the meantime, however, while awaiting further developments in the pending cases as well as the ratification process, the author of this editorial intends to turn the reader’s attention to a report entitled Patent Assertion and US Innovation. The report was released in June 2013 by the US President’s Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy. It is interesting for a number of reasons. First, the United States usually experiences many developments before these are experienced by other countries. Learning from that experience might be helpful to prepare for the developments that are also inevitable in the EU. Patent law is not an exception. Secondly, the report

Amicus CuriaeParticipation Before Regional Human Rights Bodies in Africa

AbstractA solid stream of cases have been submitted to the quasi-judicial and judicial treaty monitoring bodies making up the African regional human rights system, namely the African Commission, the African Children's Rights Committee and the African Human Rights Court, and also to sub-regional courts in Africa. Allowingamicus curiaebriefs to supplement the parties' pleadings can enhance the soundness of the factual and legal findings of these bodies, especially given their institutional and practical constraints. Thus far, the use ofamicus curiaeinterventions before the African regional human rights bodies has been negligible. In order to ensure greater participation byamici, this article suggests that the possibility ofamicusintervention should be unequivocally provided for under each of the applicable legal regimes, that the grounds for accepting or rejecting interventions should be clearly articulated, and that access to information about pending cases should be provided routinely.

Environmental Protection in the EU and the WTO: Is Article XX GATT in its Present Interpretation Consistent with the Current Standard of Environmental Protection of the EU?

In this essay, I address the different approaches of the EU and the WTO to the trade and environment conflict and find out in how far the present environmental policy of the EU is compatible with the conditions of the WTO's Art XX GATT. Therefore, I first establish the current level of environmental protection in the EU by analysing the standard aimed for by the EU and its realization in legislation and jurisprudence. To show how environmental protection works in practice, I analyse selected case law and show how EU courts treat trade restrictions on environmental grounds enacted by Member States. Having evaluated the current standard of the EU, I proceed to compare the result with the WTO. I briefly explain institutional environmental developments within the GATT 1947, important environmental cases before the establishment of the WTO 1994 and textual changes in the new WTO Agreement. I then evaluate how Art XX GATT is dealt with in key case law and simultaneously compare this to the results of my analysis of similar EU cases. To conclude, I give a brief outlook on pending cases and a summary of the results of my study in both the EU and the WTO ambit. I point out some important differences in legal texts and case law and finally come to give a negative answer to my initial question.

Investment Treaty Arbitration Post-Abaclat: Towards a Taxonomy of ‘Mass’ Claims

<section class="abstract"> This article examines the jurisdictional awards in two pending ICSID cases against Argentina—<em>Abaclat</em> and <em>Ambiente</em>—that allowed a multitude of Italian bondholders affected by Argentina's sovereign debt default to collectively use the investment treaty arbitration process, without requiring any additional or specific consent from the state. Such collective proceedings raise complex issues in relation to the state consent-centric paradigm of international investment law. The article considers the following distinct, but nevertheless interrelated, matters arising from the <em>Abaclat</em> and <em>Ambiente</em> awards, in an attempt to identify a taxonomy of collective or multi-party claims in international investment law: (i) characterisation of the nature of the proceedings; (ii) whether a host state's general consent to arbitration can be taken to include consent to being sued by multiple investors in one and the same arbitral proceeding; (iii) interpretation of the silence regarding the issue of collective proceedings in the current legal framework under the ICSID Convention; and (iv) whether collective proceedings require a certain link or relationship between the co-claimants, their respective investments and/or claims. </section>

Judicial System Reform in Italy: A Key to Growth

The inefficiency of the Italian judicial system has contributed to reduced investments, slow growth and a difficult business environment. The enforcement of civil and commercial claims suffers from excessive delays in court proceedings, resulting in a very large number of pending cases. The Italian authorities have over the years taken steps to remove bottlenecks and speed up judicial proceedings. While these measures are generally steps in the right direction, more can be done. Consideration could be given, inter alia, to reviewing court fees, improving the new mandatory mediation scheme, strengthening court management, and reforming the appeal system.

Judicial System Reform in Italy: A Key to Growth

The inefficiency of the Italian judicial system has contributed to reduced investments, slow growth and a difficult business environment. The enforcement of civil and commercial claims suffers from excessive delays in court proceedings, resulting in a very large number of pending cases. The Italian authorities have over the years taken steps to remove bottlenecks and speed up judicial proceedings. While these measures are generally steps in the right direction, more can be done. Consideration could be given, inter alia, to reviewing court fees, improving the new mandatory mediation scheme, strengthening court management, and reforming the appeal system.

Conversations with Thaksin - From Exile to Deliverance: Thailand’s Populist Tycoon Tells His Story

Tom Plate (2011). Conversations with - From Exile to Deliverance: Thailand's Populist Tycoon Tells His Story. Singapore: Marshall Cavendish. ISBN 978-981-4328685. 249 pages.Nearly seven years after coup that ousted Thailand's Prime Minister Shi- nawatra, a reincarnation of Thai Rak Thai party, Phuea Thai party, came to power once again. The astounding landslide victory in 2011 general election saw country's first female Prime Minister, Thaksin's younger sister Yingluck Shinawa- tra. With campaign posters saturating landscape and displaying slogans such as Thaksin thinks, Phuea Thai acts, as well as periodic reports of Skype cabinet meetings with orchestrating party politics as mediation in policy, there is no doubt that ex-Prime Minister is very much involved in Thai politics, albeit from afar. Exile, it seems, has not curbed passions and political relevance that are criti- cal to former Prime Minister's survival, return, and possible political rehabilita- tion. As is currently in self-exile in protest against a politically influenced and biased judicial system and has multiple criminal cases pending, exigencies surrounding his sister and vanguard political party have become central to dealing with allegedly compromised judiciary.Tom Plate's book is based on interviews garnered over a week's time, which al- lowed academic and ex-journalist unprecedented access to man (Thaksin) in Dubai. A recurring dichotomy becomes evident in this book: Is unre- pentant democrat or chastened autocrat? The ex-Prime Minister often reveals him- self to be an unfairly judged and accosted supporter of poor or the people in general. Simultaneously, he acknowledges serious mishandling of critical domestic issues such as Southern Muslim insurgency and, most importantly, his gross misjudgment of antagonisms with palace, which may have led to his current exile. Nonetheless, this book is interesting in terms of how author approaches rise of in functional order, his exile, and alleged indirect comeback via his younger sister. The author attempts to draw into critical realm of his deposition and investigates who was really behind his ouster by referring to royal institution and his confrontations with privy councilor Prem Tinsulanonda, who is considered one of most influential and instrumental figures in palace political complex (p. 145). Confrontation with royal institution is perhaps most crucial aspect that author addresses, albeit in a conservative manner. The reasons for ambiguity in addressing royal institution are of course Thailand's current polarized political climate and legal redress to Article 112 of criminal code, better known as lese-majeste law. This highlights still simmering undertones of Thai political economy where extremely popular ex-Prime Minister stands, due to his electoral success, in direct confrontation with Thailand's most revered figure and its institutional machinery. …

The Policy Issue Surrounding Smart-Phone SEPs, and a Comment on Adjusting Current Patent Laws to Facilitate Clean-Tech Industry Growth

While the FTC has weighed in on the SEP debate, a closer look at the smart-phone battle unveils a situation that is not so clear-cut. This paper addresses the operations of SSO’s and the current issue with injunctive relief, and then explains why the Smartphone War presents unique questions of law. The paper then closes with a comment on significant smart-phone cases both completed and pending.

THE EUROPEAN COMMISSION POLICY TOWARDS THE LICENSING OF STANDARD-ESSENTIAL PATENTS: WHERE DO WE STAND?

Defining the circumstances in which the licensing conduct or litigation strategy of a standard-essential patent (SEP) holder amounts to an abuse of a dominant position in breach of Article 102 of the Treaty has been one of the most intractable issues for the European Commission given the significance of the interests at stake and the diversity of opinions among stakeholders. Although the Commission has spent most of the past ten years investigating alleged abuses committed by SEP holders, many issues, such as the meaning of FRAND and the compatibility with Article 102 of injunctions sought by SEP holders to enforce their patents, remain unresolved given the lack of clear precedents. This article provides a critical review of the main investigations carried out by the Commission over the past decade, including pending cases before the Commission and the European Court of Justice.

Reflections on the European Dimension of the Public Office

Abstract Research objective This study is focused on the analysis of the European dimension of the public office. Theoretical frame The Statute of the European public servants and the Statute of the national public servant are the two legislatives on which the most of the study is focused. The novelty element Starting from the idea that there was not found a similar work in the administrative law to analyze our proposed topic, this study proposes the following structure: the concept of “public servant”, legal disciplinary regime, the Tribunal of the European Public Office. Methodology The study presents comparatively two regulatory actions, the Statute of the European public servants and the Statute of the national public servants, by presenting selectively the most important differences of legal treatment in terms of the disciplinary regime. Also, in addition to the presentation of the theoretical elements of the first part of the study, in which I also used the deductive method, an important part of the study is dedicated to the presentation of the relevant statistic elements of the activity of the Tribunal of the European Public Office, by often using examples when I analyzed the case studies. Through the presentation of the statistic elements, it was aimed the capture of the dynamics of the cases pending in this forum of protection of the European public servants. Results This study presents an original conception on the public office, by capturing its European dimension and underlying the practical importance of the Tribunal of the European Public Office. Finally, we propose to realize a synthesis of findings that require further analysis.